DATE: October 23, 1995
CASE NOS. 92-ERA-19
92-ERA-34
IN THE MATTER OF
RANDOLPH FRADY,
COMPLAINANT,
v.
TENNESSEE VALLEY AUTHORITY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
Before me for review is the Recommended Decision and Order
(R. D. and O.) of the Administrative Law Judge (ALJ) in these
consolidated cases arising under the employee protection
provision of the Energy Reorganization Act of 1974 (ERA), as
amended, 42 U.S.C. § 5851 (1988).[1] The ALJ recommended
dismissal of the fourteen allegations of discriminatory
nonselection raised in complaints filed on August 21, 1991,
September 24, 1991 and January 21, 1992. The allegations with
respect to employment positions numbered 1, 3, 7, 8 and 11-14,
see Respondent's Exhibit (RX) 1,[2] were dismissed in
response to the motion for summary judgment filed by Respondent,
Tennessee Valley Authority (TVA). R. D. and O. at 2; see
Hearing Transcript (T.) 318-31. The ALJ reached the merits
of the discriminatory allegations regarding employment positions
numbered 2, 4, 5, 6, 9 and 10 and recommended that those
complaints be dismissed based on the failure of Complainant,
Randolph Frady (Frady), to establish discrimination under
the ERA. R. D. and O. at 6-9. Upon careful review of the
complete record before me and the findings and conclusions of the
ALJ, I agree that the complaints concerning employment positions
numbered 1, 3, 5, 7, 8, 9, 10 and 11-14 should be dismissed, but
reject the conclusion that Frady has failed to carry his burden
to demonstrate discrimination under the ERA in regard to
employment positions numbered 2, 4, and 6.
DISCUSSION
A. Summary judgment
[PAGE 2]
A motion for summary judgment in an ERA case is governed by
29 C.F.R. §§ 18.40 and 18.41. See, e.g., Trieber v.
Tennessee Valley Authority, et al., Case No. 87-ERA-25, Sec.
Dec., Sept. 9, 1993, slip op. at 7-8. This section, which is
derived from Rule 56 of the Federal Rules of Civil Procedure
(FRCP), permits an ALJ to recommend summary decision for either
party where "there is no genuine issue as to any material fact
and . . . a party is entitled to summary decision." 29 C.F.R.
§ 18.40(d)(1992). Thus, in order for the ALJ's granting of
TVA's motion to be sustained, there must be no material facts in
dispute and TVA must be entitled to prevail on the issues
involved as a matter of law. See Webb v. Carolina Power &
Light Co., Case No. 93-ERA-42, Sec. Dec., Jul. 17, 1995, slip
op. at 4-6; Merriweather v. Tennessee Valley Authority,
Case No. 91-ERA-55, Sec. Dec., Feb. 4, 1994, slip op. at 2-3.
The determination of whether a genuine issue of material fact exists
must be made viewing all evidence and factual inferences in the light
most favorable to Frady. See Gillilan v. Tennessee Valley Authority,
Case Nos. 91-ERA-31, 91-ERA-34, Sec. Dec., Aug. 28, 1995, slip op. at
5; see also Street v. J.C. Bradford & Co., 886 F.2d 1472
(6th Cir. 1989).
Prior to the hearing, TVA submitted a motion for summary
judgment to the ALJ. Respondent's Motion for Summary Judgment Or
Judgment as a Matter of Law dated September 8, 1992. In support
of that motion, TVA submitted selected portions of Frady's
deposition taken by TVA on August 27, 1992, as well as the
affidavits and/or declaration of three managers involved in the
filling of some of the positions at issue. At the close of
presentation of the testimony of the witnesses called by Frady at
hearing, TVA renewed its motion for summary judgment as to all
allegations of discriminatory nonselection. T. 318-24. At that
time, counsel for Complainant did not object to summary judgment
with regard to the positions numbered 1, 3, 7, 8 and 11-14. T.
327-28. In his post-hearing brief, Frady indicated that the
allegations with regard to the positions numbered 1, 3, 7, 8 and
11-14 had been "voluntarily dismissed." Complainant's Closing
Argument [Brief] at 1.
Voluntary dismissal of a complaint under the ERA is governed
by Rule 41 of the FRCP, see, e.g., Nolder v. Kaiser Engineers,
Inc., Case No. 84-ERA-5, Sec. Dec., June 28, 1985, slip op.
at 6-8. Withdrawal of counts within multiple count complaints,
as are here at issue, however, is governed by Rule 15(a) of the
FRCP, which concerns amendments of pleadings. Fed. R. Civ. P.
15(a); see Mitchell v. Arizona Public Service Co., Case
No. 92-ERA-28, ALJ Dec., Apr. 13, 1992; see also
Paglin v. Saztec Int'l, 834 F.Supp. 1184 (WD Mo.
1993); contraOswalt v. Script, Inc., 616 F.2d 191
(5th Cir. 1980). I therefore conclude that the
[PAGE 3]
complaints in this case have been amended to delete the counts
concerning the positions numbered 1, 3, 7, 8 and 11-14, and I
approve such amendments. Accordingly, I need not reach the ALJ's
recommendation to enter summary judgment in favor of TVA in
regard to the foregoing positions.[3]
B. Elements of proof, generally
Under the burdens of proof and production in "whistleblower"
proceedings, a complainant who seeks to rely on circumstantial
evidence of intentional discriminatory conduct must first make a
prima facie case of retaliatory action by the respondent,
by establishing that he engaged in protected activity,
that he was subjected to adverse action, and that the respondent
was aware of the protected activity when it took the adverse
action. Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2,
Sec. Ord., Apr. 25, 1983, slip op. at 6-8, citing Texas
Department of Community Affairs v. Burdine, 450 U.S. 248
(1981). Additionally, a complainant must present evidence
sufficient to raise the inference that the protected activity was
the likely reason for the adverse action. Id. If a
complainant succeeds in establishing the foregoing, the
respondent must produce evidence of a legitimate,
nondiscriminatory reason for the adverse action. Id. The
complainant bears the ultimate burden of persuading that the
respondent's proffered reasons are not the true reason for the
adverse action, but are a pretext for discrimination. Thomasv. Arizona Public Service Co.,
Case No. 89-ERA-19, Sec. Dec., Sept. 17, 1993, slip op. at
20, citing St. Mary's Honor Center v. Hicks, 113
S.Ct. 2742, 125 L.Ed. 2d 407 (1993); see Yellow Freight
System, Inc. v. Reich, 27 F.3d 1133 (6th Cir. 1994) aff'g
Smith v. Yellow Freight System, Inc., Case No. 91-STA-45,
Sec. Dec., Mar. 10, 1993. At all times, the complainant bears
the burden of establishing by a preponderance of the evidence
that the adverse action was in retaliation for protected activity
in violation of the ERA. Thomas, slip op. at
20; see Yellow Freight System, Inc.,
27 F.3d at 1139; see also Jopson v. Omega Nuclear
Diagnostics, Case No. 93-ERA-0054, Sec. Dec., Aug. 21, 1995,
slip op. at 5 n.4.
C. The ALJ's findings of fact and conclusions of law
As discussed herein, the ALJ's analysis of the issues in this
case is cursory. Although I have given careful consideration to
the ALJ's ultimate factual conclusions, I have determined that,
with few exceptions, those conclusions are not based on
sustainable factual findings. To be sustained, all factual
findings, including credibility determinations, must be supported
by substantial evidence on the record considered as a whole.
Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Where
a factfinder's "theory of credibility is based on inadequate
[PAGE 4]
reasons or no reasons at all, his findings cannot be upheld."
NLRB v. Cutting, Inc., 701 F.2d 659, 667 (7th Cir. 1983).
All relevant, probative and available evidence must be weighed by
the factfinder who must make explicit statements as to what
portions of the evidence are accepted or rejected.
Dobrowolsky v. Califano, 606 F.2d 403, 409-10 (3d Cir.
1979). A full explanation of why specific evidence was rejected
is imperative, since a factfinder "cannot reject evidence for no
reason or for the wrong reason." Cotter, 642 F.2d at 706-
07.
Credibility findings that "rest explicitly on an evaluation
of the demeanor of the witnesses" may be accorded exceptional
weight by a reviewing court. NLRBv. Cutting,
Inc., 701 F.2d at 663. These "demeanor" findings are in
contrast to credibility findings based on the substance of the
testimony itself, e.g., internal inconsistency, inherent
improbability, important discrepancies, impeachment, and witness
self-interest. See Universal Camera Corp. v. NLRB, 340
U.S. 474, 496 (1951); Dorf v. Bowen, 794 F.2d 896, 901-02
(3d Cir. 1986); Kent v. Schweiker, 710 F.2d 110, 116 (3d
Cir. 1983); NLRBv. Cutting, Inc., 701 F.2d at 666;
Ertel v. Giroux Brothers Transp., Inc., Case No. 88-STA-
24, Sec. Dec., Feb. 16, 1989, slip op. at 12 and n.7.
In the instant case, the ALJ's findings of fact are flawed in
several respects. The conduct of the hearing failed "to assure
production of the most probative evidence available...," as
provided for under 29 C.F.R. § 24.5(e)(1)(1992). During the
course of the hearing, the ALJ erroneously sustained TVA's
objections to testimony that should have been admitted into
evidence. This testimony falls into two basic categories.
First, testimony adduced for the purpose of showing the
degree to which Frady's protected activity was the subject of
discussion among TVA managers involved in quality inspection at
the Sequoyah and Watts Bar nuclear plants, see, e.g., T.
206; cf. T. 208-09, 348 (where ALJ overruled TVA's
objections). See 29 C.F.R. §
18.801(c)(Hearsay. "Hearsay" is a statement, other than
one made by the declarant while testifying at hearing, offered in
evidence to prove the truth of the matter asserted
[emphasis added].), § 18.803(a)(3)(not excluded by the
hearsay rule: "Then existing mental, emotional or physical
condition. A statement of the declarant's then existing
state of mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain, and bodily
health) . . . .); Pogue v. United States Dept. of the Navy,
87-ERA-21, Sec. Dec., May 10, 1990, slip op. at 24 n.17,
rev'd on other grounds sub nom. Pogue v. United States Dept.
of Labor, 940 F.2d 1287 (9th Cir. 1987); see also McNally
v. Georgia Power Co., Case No. 85-ERA-27, Sec. Dec., Sept. 8,
1992, slip op. at 7 n.6.
Second, the ALJ repeatedly sustained TVA's objections to
[PAGE 5]
testimony relevant to incidents that preceded or gave rise to a
previous ERA complaint filed by Frady that was resolved by a
settlement agreement entered into in June 1991,[4] see, e.g.,
T. 71; cf. T. 191, 349-52 (where ALJ overruled TVA's
objections).[5] Frady has not attempted to resurrect his
previous Section 210 complaint and nothing in the June 1991
settlement agreement or applicable precedent bars him from
submitting evidence of previous acts that demonstrates
retaliatory animus towards him for purposes of the instant
complaints. See CX 1; RX 2; see also Harrison
v. Stone & Webster Engineering Group, Case No. 93-ERA-44,
Sec. Dec., Aug. 22, 1995. In view of the conclusions
reached in this decision regarding supervisory animus towards
Frady and the channels of supervisory communication at these
plants,[6] the ALJ's errors regarding the hearing testimony do
not require remand for supplementation of the evidence pertinent
to these issues. See Pillow v. Bechtel Construction,
Inc., Case No. 87-ERA-35, Sec. Dec., July 19, 1993, slip op.
at 9.[7]
The ALJ also failed to provide adequate explanation for his
resolution of the many conflicts posed by the testimony in this
case. See R. D. and O. at 2-6; Dobrowolsky, 606
F.2d at 409-10. For example, he failed to explain the basis on
which he found one witness to be "highly credible" or to address
pertinent factors concerning either the demeanor of the witnesses
or the substance of their testimony. See R. D. and O. at
6-9; Universal Camera Corp., 340 U.S. at 496; NLRB v.
Cutting, Inc., 701 F.2d at 663. He also apparently
failed to consider the testimony of other witnesses, including
TVA supervisory personnel, that corroborates Frady's testimony,
particularly in regard to the degree of animus demonstrated
toward Frady by TVA supervisory personnel.[8] See
R. D. and O. at 8.
Accordingly, as specifically indicated in the discussion of
the issues infra, I decline to adopt the credibility
determinations of the ALJ and have rendered
the necessary factual findings based on a thorough examination of
the record. See Simon v. Simmons Foods, Inc., 49 F.3d
386, 389-90 (8th Cir. 1995). As factual background for that
discussion, I note the following.
The record indicates that Frady was initially employed by TVA
in April 1978, T. 22, and remained continuously employed with
Respondent until December 1990, when he received notice that he
was being terminated during a reduction in force (RIF), see
CX 1; RX 2. See R. D. and O. at 2. For most of his
career with TVA, Frady worked in the area of quality inspection.
T. at 23-25; RX 20; see R. D. and O. at 2. He worked as
an inspector at the Sequoyah nuclear plant and, for a shorter
period of time, at the Watts Bar nuclear plant. RX 20.
Beginning in 1985, Frady raised various safety concerns to TVA
management and to the Nuclear
[PAGE 6]
Regulatory Commission (NRC). T. at 25-37; CX 16; RX 25. When he
received notice of his impending termination in December 1990,
Frady was employed by TVA as a Nuclear Inspector at the Sequoyah
plant. RX 4.
Following receipt of the RIF notice in December 1990, Frady
filed a complaint under Section 210 of the ERA, 42 U.S.C. §
5851, which was resolved by a settlement agreement entered into
with TVA effective June 14, 1991. RX 2. Under that agreement,
inter alia, Frady was to be reinstated with TVA for an
approximate six months period during which he would be placed in
the Employee Transition Program (ETP)[9] and provided an
opportunity to seek other employment within TVA or with outside
employers. Id. The agreement also provided that TVA
would remove from Frady's personnel history record a service
review for the period of June 2, 1989 through June 1, 1990 and a
warning letter to Frady from a supervisor, T.J. Arney, dated
October 10, 1990. Id. Pertinent to the issue of
application for other positions at TVA, the agreement provided
that Frady would be interviewed for a mechanical maintenance
apprenticeship at the Watts Bar nuclear plant and would be
informed of his numerical ranking among the applicants.
Id.
Prior to and during the period of June to December 1991 while
Frady was participating in the ETP, he sought various positions
with TVA. See RX 1. He was selected for none of those,
however, and on August 21 and September 24, 1991 filed two of the
complaints that are before me. In November 1991, Frady received
a second notice of a RIF termination, which action became
effective January 10, 1992. RX 4. Citing nonselection for
further positions at TVA, Frady filed a third complaint on
January 21, 1992.
D. TVA positions 2, 5, and 6, crafts trainee positions
1. Protected activity and knowledge -- positions 2, 5 and 6
The positions numbered 2, 5 and 6 on RX 1 are for machinist,
steamfitter, and instrument mechanic trainee vacancies in
training programs conducted by TVA in cooperation with pertinent
crafts unions. See RX 7A, 9A, 10A; T. 362-64. The record
indicates that candidates for each position were selected by a
committee composed of a management representative, a union
representative and a Human Resource Manager from TVA's Labor
Relations office, Kevin B. Green, who acted as secretary for each
committee and participated in the interviews and the joint
evaluation of each applicant's qualifications. T. 371, 373, 388;
see also T. 361.
To establish the requisite element of knowledge in regard to
nonselection for these positions, Frady must establish that a TVA
employee who had substantial input into the selection decision
had knowledge of the protected activity at the time the selection
[PAGE 7]
decision was made. See Bartlik v. Tennessee Valley
Authority, Case No. 88-ERA-15, Sec. Dec., Apr. 7, 1993, slip
op. at 4 n.1. In the instant case, the record indicates that
Frady had engaged in protected activity on various occasions over
the years that he was employed by TVA, including raising improper
safety practices to TVA management and to the NRC, T. 25-35, 105-
06; CX 16; RX 25, and culminating in his filing of the ERA
complaint that was the subject of the settlement with TVA in June
1991, CX 1. See Section 210(a) of the ERA, 42 U.S.C.
§ 5851(a); Kansas Gas & Elec. Co. v. Brock, 780 F.2d
1505, 1510-13 (10th Cir. 1985), cert. denied, 478 U.S.
1011 (1986); Mackowiak v. University Nuclear Systems,
Inc., 735 F.2d 1162-63 (9th Cir. 1984).
The testimony of other TVA employees, including Frady's
supervisors,corroborated Frady's testimony regarding
widespread knowledge of Frady's activity among TVA managers in
the Site Quality Organization units at the Sequoyah and Watts Bar
nuclear plants, T. 69-71 (Frady), 201, 211-12, 234 (Boykin,
stating, inter alia, "There's lots of things that [go] on
that you hear secondhand."), 302 (Smith), 348-49, 352-3 (Miller),
499-500, 518-21 (Lumpkin, stating, inter alia, that he
heard of Frady's raising concerns to the NRC through "the hearsay
routes","the rumor mill type of thing, and ... people talk").
Particularly in view of the nature of some of the concerns raised
by Frady,[10] the testimony indicating that his protected
activity had been the subject of considerable discussion among
staff and management at the Watts Bar and Sequoyah nuclear plants
is wholly credible. See generally Pillow, slip op. at 4-
5, 12 (discussing widespread rumors at work site regarding
complainant's role in drug testing and resulting termination of
four co-workers).
In sum, the credible testimony of record supports a
characterization of Frady's history of protected activity as
common knowledge among the members of management within the Site
Quality organizations of the TVA Nuclear Power group at the
Sequoyah and Watts Bar sites. See Pillow, slip op. at
12. The record also supports the conclusion that Green,
who was on the selection committees for positions 2, 5 and 6, was
familiar with those managers in the Site Quality organizations at
the Sequoyah and Watts Bar plants. Green testified that, in his
seventeen years of working in TVA's Employee Relations/Labor
Relations unit, he had worked specifically with the Nuclear Power
group, which included the Site Quality organizations at these two
plants, as well as working with its parent Generating Group, as a
whole. T. 361-62, 390; see also T. 244 (Raines).
Frady testified that Phil Reynolds, a TVA personnel manager, had
negotiated the June 1991 settlement for TVA. T. 144. Green
testified on cross-examination that he had been informed by
Reynolds, as manager of the Labor Relations office for the TVA
[PAGE 8]
Generating Group, "and others," that Frady was entitled to
interviews for certain positions under the settlement between
Frady and TVA. T. 426-30. Green also testified that he knew Roy
L. Lumpkin, Jr., Frady's manager and the TVA signatory on the
settlement agreement, albeit "indirectly" rather than
"personally." T. 427. The applications that Frady filed for
these positions indicated his history at TVA, including the
periods during which he had been a nuclear inspector. CX 4, 7,
8. Finally, the record indicates that Frady interacted with
machinists and steamfitters and their managers as a quality
inspector at the Watts Bar and Sequoyah plants. T. 149-52, 159-
60, 164. Two of the other three managers on the selection
committees testified to their familiarity with Frady as a quality
inspector around the Sequoyah plant, although they denied
knowledge of his protected activity. T. 533-35 (Poole), 539-40
(Rinehart).[11]
Against this background, it is difficult to accept TVA's
contention that, although Green knew that Frady had been involved
in some kind of legal settlement with TVA, Green did not possess
the requisite knowledge of Frady's protected activity.
Particularly in view of the testimony indicating that quality
inspectors at the TVA nuclear plants, including Frady, frequently
engaged in protected activity in the course of their jobs,T. 457(Ezell), 500(Lumpkin), I
conclude that at least one member on each selection committee
strongly suspected, if he did not indeed know, that Frady had
engaged in protected activity at the time of the committee
selection proceedings. See Pillow, slip op. at 12,
citing Williams, slip op. at 6. I therefore reject
the ALJ's conclusion to the contrary, R. D. and O. at 7, and
conclude that Frady demonstrated the requisite knowledge on the
part of individuals involved in the selection of the candidates
for the crafts trainee positions.
2. Adverse action -- positions 2 and 6, machinist and
steamfitter trainees
An employer's failure to select a complainant for employment
does not necessarily constitute an adverse action, as an employer
is free not to hire any individual absent a discriminatory reason
proscribed by law. Samodurov v. General Physics Corp.,
Case No. 89-ERA-20, Sec. Dec., Nov. 16, 1993, slip op. at 10.
To establish that the failure to select Frady for any of the
trainee positions constitutes adverse action, Frady must
establish that he was qualified for such position; that, despite
his qualifications, he was rejected; and that TVA continued to
seek and/or select similarly qualified applicants. See
Samodurov, slip op. at 11, citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). I will examine the
respective machinist and
[PAGE 9]
steamfitter trainee positions under the foregoing standard,
seriatim.
Frady applied for these trainee positions at the Sequoyah
plant, number 2 on RX 1, on July 3, 1991. CX 4; see RX
7A. Although the vacancy announcement indicated that trainees in
the machinist, steamfitter and boilermaker crafts would be
selected, Green testified that no boilermaker trainees were
chosen, as a result of the agreement with the international
representative of the boilermakers' union that TVA would
accommodate by re-employment as many journeyman boilermakers
formerly employed by TVA as possible, prior to employing new
trainees. T. 384-85; see T. 366; CX 4; RX 7A.
Contrary to the ALJ's finding that Frady "lacked the
necessary aptitude" to perform this job, R. D. and O. at 8, the
record indicates that there is no issue concerning whether Frady
met the minimum qualifications for these trainee positions at the
Sequoyah nuclear plant, viz., the General Aptitude Test
Battery (GATB), 18 years of age, high school diploma/GED
certificate, and minimum scores on the American College Test
(ACT) for mathematics, natural science and the composite score.
See CX 8; see also Respondent's Post-hearing Brief
at 33. A joint labor-management committee interviewed Frady, as
well as other applicants.[12] T. 362-65. Six candidates were
selected for the machinist trainee slots and six candidates were
selected for the steamfitter slots. T. 375, 398. Frady was
ranked eighth out of the field of candidates for each of the two
programs. RX 7C. Green testified regarding the qualifications
of some of the candidates that were ranked ahead of Frady for the
Sequoyah steamfitter and machinist positions. T. 375-81, 385-95,
438-40. Although Green attempted to distinguish the candidates
ranked ahead of Frady by the committee based on a common theme of
relevant "hands on" experience, T. 374-80, 389-95, 438-49,
Green's testimony clearly indicates that selectees were chosen
who possessed similar qualifications to those of Frady.[13]
For example, although Green testified that Frady's ranking
among the candidates for the steamfitter position was diminished
by the fact that Frady's position of nuclear inspector had
required him to watch others work and to inspect their work,
rather than performing the work himself, see, e.g., T.
425, Green characterized another candidate as more highly
qualified to be a steamfitter trainee than Frady because that
candidate, as a sheet metal foreman, "was basically quite
familiar with what a steamfitter did." T. 379. Frady's resume,
TVA application form and his testimony indicate that, in the
years that he had worked with TVA, he had been exposed to plant
components which are serviced by steamfitters, CX 8; T. 23-4,
157-58.[14] As acknowledged by Green on cross-examination,
Frady had described
[PAGE 10]
in his interview for the steamfitter position the extent of his
exposure to the pipes, valves and pumps that the steamfitter
trainee would be servicing at the Sequoyah plant, but the
committee members did not consider it to be a significant factor
in assessing Frady's qualifications. T. 441-43.
Similarly, in regard to "hands on" experience that would be
relevant to the machinist trainee position, Green cited the
experience of another candidate who had operated a yarn machine
in a factory and who had assisted her husband, who owned a
heating and air-conditioning equipment company, on "some"
occasions in an unspecified manner in the installation of such
equipment, T. 443-46, but stated that Frady's use of calibration
tools as a nuclear inspector was not considered relevant because
such measuring tools were "specialized", T. 446-49. Furthermore,
although Green testified that the selection committee members had
relied on activities such as working on automobile engines as a
hobby or having completed a painter apprenticeship to determine
that candidates possessed a desirable degree of "manual
dexterity" and "mechanical aptitude", T. 378, 421, 424, Green
stated that Frady's experience with constructing his residence
did not favorably impress the selection committee, T. 380-81.[15]
Consequently, I reject the ALJ's contrary conclusion and
find that the record demonstrates that similarly qualified
candidates were selected and, thus, that Frady's nonselection for
the steamfitter and machinist trainee positions at the Sequoyah
nuclear plant constituted an adverse action. See Samodurov,
slip op. at 11 citing McDonnell Douglas Corp., 411
U.S. at 802.
Position number 6 on RX 1 is for machinist and steamfitter
trainee positions at the Watts Bar nuclear plant. CX 8; RX 11A.
Frady applied for the position on June 25, 1991. CX 8. As with
position number 2, there is no question that Frady met the
minimum qualifications -- GATB, 18 years of age, high school
diploma/GED certificate and minimum scores on the ACT -- for
these positions. See CX 8. Although the vacancy
announcement indicated that trainees in the machinist,
steamfitter and boilermaker crafts would be selected, Green
testified that, in view of the large number of applicants, the
union determined that each candidate would be interviewed for
either the machinist or the steamfitter position, rather than
both, with the exception of one TVA employee, who was task
qualified in both areas. T. 411-16. As with position number 2,
Green testified that no boilermaker trainees were selected from
the applicants. T. 384-85; see discussion supra.
Frady was interviewed by the selection committee for the
machinist trainee position. T. 412.[16] Green testified that
six candidates were selected for the machinist trainee slots and
six candidates were selected for the steamfitter trainee slots.
T. 413. Frady was ranked twelfth
[PAGE 11]
among the candidates by the union committee member, thirteenth by
the management committee member. RX 11C.
With regard to whether the selectees held similar
qualifications to those of Frady for these Watts Bar machinist
trainee positions, Green's testimony, once again, focused only on
the "hands on" experience of the selectees, which Green attempted
to distinguish from that of Frady. T. 410-25, 438-49. For the
reasons discussed in the analysis of this issue in the context of
position 2, supra, I again conclude that candidates having
qualifications similar to those of Frady were selected, and
therefore that Frady has demonstrated that his nonselection for
the position of machinist trainee at the Watts Bar plant
constituted an adverse action. See Samodurov, slip op. at
11, citing McDonnell Douglas Corp., 411 U.S. at 802. I
thus reject the contrary conclusion of the ALJ, R. D. and O. at
8.
3. Temporal proximity and inference of retaliatory motive --
positions 2 and 6, machinist and steamfitter trainees
Temporal proximity between protected activities and the
adverse action against a complainant under the ERA has been held
sufficient to establish the inference that the adverse action was
motivated by the protected activity. Couty v. Dole, 886
F.2d 147, 148 (8th Cir. 1989); Kahn v. Commonwealth Edison
Co., Case No. 92-ERA-58, Sec. Dec., Oct. 3, 1994, aff'd
sub nom. Kahn v. U.S. Department of Labor, 1995 U.S.App.
Lexis 24111 (7th Cir. 1995); Rainey v. Wayne State Univ.,
Case No. 89-ERA-48, Sec. Dec., Apr. 21, 1994; McCuistion
v. Tennessee Valley Authority, Case No. 89-ERA-6, Sec. Dec.,
Nov. 13, 1991. In the instant case, Frady had most recently
engaged in protected conduct by pursuing resolution of the ERA
complaint that he had filed in January 1991 through negotiation
of the settlement agreement entered into in June 1991. As noted
supra, Green was clearly aware that Frady had entered into
a settlement with TVA and the evidence supports the conclusion
that at least one member of each selection committee knew or
strongly suspected that Frady had engaged in protected activity.
The interviews and selections for the trainee slots included
under positions 2 and 6 occurred within two to three months after
Frady entered into the June 1991 settlement. T. 432-37; RX 11C at
2,3.[17] Frady has thus established an inference of retaliatory
motive based on temporal proximity. See Goldstein v. Ebasco
Constructors, Inc., Case No. 86-ERA-36, Sec. Dec., Apr. 7,
1992, slip op. at 11-12, rev'd on other grounds sub nom.
Ebasco Constructors, Inc. v. Martin, 986 F.2d 1419 (5th Cir.
1993)(table)(causation established where seven or eight months
elapsed between protected activity and adverse action).
[PAGE 12]
4. Discriminatory motive -- positions 2 and 6, machinist and
steamfitter trainees
At hearing, TVA presented the testimony of Green and three
other managers who served on the selection committees indicating
that the trainee selections had been based on the superior
qualifications of the selectees. As TVA thus met its burden of
articulating a legitimate, nondiscriminatory basis for its
action, the analysis now shifts to the issue of whether Frady has
demonstrated that such basis is merely pretextual and that TVA's
action was actually based on a discriminatory motive.
See Yellow Freight System, Inc., 27 F.3d at 1139-
40; Pillow, slip op. at 13, citing St.
Mary's Honor Center, 113 S.Ct. at 2749, 125
L.Ed. 2d at 419; Dartey, slip op. at 6-9. Frady
may demonstrate that the reasons given were a pretext for
discriminatory treatment by showing that discrimination was more
likely the motivating factor or by showing that the proffered
explanation is not worthy of credence. Pillow, slip op.
at 14; Dartey, slip op. at 8. In order to determine that
Frady has established discriminatory action in regard to these
nonselections by TVA, however, "[i]t is not enough . . . to
disbelieve the employer; the factfinder must believe the
plaintiff's explanation of intentional discrimination." St.
Mary's Honor Center, 113 S.Ct. at 2749, 125 L.Ed. 2d at 424;
see Yellow Freight System, Inc., 27 F.3d at 1139;
Pillow, slip op. at 14-15. Although found
to be pretextual, an employer's stated reasons may nonetheless be
found to be a pretext for action other than prohibited
discrimination. See Galbraith v. Northern Telecom, 944
F.2d 275, 282-83 (6th Cir. 1991). The ultimate inquiry is
thus whether Frady has demonstrated that he was not selected for
these trainee positions because of his history of engaging in
protected activity.
It is well established that, in employee discrimination
cases, "[t]he presence or absence of retaliatory motive is a
legal conclusion and is provable by circumstantial evidence even
if there is testimony to the contrary by witnesses who perceived
lack of such improper motive." Ellis Fischel State Cancer
Hospital v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980),
quoted in Mackowiak v. University Nuclear Systems, Inc.,
735 F.2d 1159, 1162 (9th Cir. 1984). In the context
of a case such as this, which involves a nuclear inspector, it
must also be borne in mind that "[a]t times, the inspector may
come into conflict with his employer by identifying problems that
might cause added expense and delay." Mackowiak, 735 F.2d
at 1163. The record indicates that such was the case with Frady,
who was characterized as "a pretty technical inspector," T. 212
(Boykin), and who had raised various substantial safety concerns
to management and to the NRC, see n.10, supra. As
stated by the Mackowiak court, the ERA does
[PAGE 13]
not allow "discrimination based on competent and aggressive work"
and employers may not discriminate against "quality control
inspectors because they do their jobs too well." 735 F.2d at
1163. Without protection from retaliation, nuclear inspectors
can simply not function effectively in their extremely important
role in the NRC regulatory scheme. See Mackowiak, 735
F.2d at 1163. The significance of safety in the nuclear industry
cannot be gainsaid, and, as indicated by Frady's
testimony, T. 105-07, there is a crucial public interest at stake
when issues of non-compliance with safety regulations arise.
See Hoffman v. Fuel Economy Contracting, Case No.
87-ERA-33, Sec. Ord., Aug. 4, 1989, slip op. at 4.
As indicated in the context of the adverse action
discussion supra, I do not find the testimony indicating
that the selectees for the machinist and steamfitter trainee
positions were found by each committee to be better qualified
than Frady based on their "hands on" experience to be persuasive.
In addition to the reasons noted above, the following factors
suggest that bias against Frady played a role in his evaluation
by these committees.
The record contains various indicia that the knowledge and/or
suspicions of the committee members about Frady's history of
protected activity had an adverse effect on his participation in
the interview process. In its cross-examination of Frady, TVA
attempted to demonstrate that, if Frady did have "hands on"
experience pertinent to his candidacy for these positions, he had
failed to adequately present such information to the committee.
T. 157-59. Similarly, Green's testimony emphasized the
possibility that Frady had not fully apprised the committee
members of such pertinent information during the interview
process. T. 380-81; see T. 421-22; see also T.
554-555 (Rinehart).
In direct examination, Frady had testified that the interview
for the Watts Bar trainee position was over "real quick." T. 58-
9. In response to questions on cross-examination regarding
whether he had volunteered any information regarding pertinent
"hands on" experience to the Sequoyah selection committee, Frady
indicated that the committee had not shown an interest in his
experience with using tools after he had responded in the
negative to the question of whether he had ever rebuilt an
automobile engine. T. 158. In contrast, the record suggests
that other candidates could have been "primed" in advance to
assist them in answering the standard questions that were asked
of each applicant.[18] I therefore reject the ALJ's contrary
conclusion, R. D. and O. at 8, and find that the basis provided
by TVA for the nonselection of Frady for the trainee positions
numbers 2 and 6 was pretextual. See Yellow Freight System,
Inc.,
[PAGE 14]
27 F.3d at 1139.
Furthermore, the evidence indicates the the "marginal"
service review and letter from Arney that were to be removed from
Frady's personnel history record (PHR) pursuant to the June 1991
settlement may have been reviewed by Green in his preparation of
the paperwork for use by the selection committees in evaluating
the candidates for these trainee positions. Frady's
uncontradicted testimony indicated that, in mid-July 1991, he
checked his records at a TVA personnel office and found that the
service review and letter from Arney had not yet been removed
from his PHR. T. 43-4; see also T. 73-4, 77, 104-05, 121-
22. The record also indicates that the PHR was not corrected in
conformance with the terms of the settlement agreement until at
least July 30, 1991. See T. 124-25 (Frady), 268-69
(Sewell).[19] Green testified on cross-examination that, in
the course of preparing the paperwork regarding the applicants'
qualifications for use by a selection committee, he would, as a
routine matter, have examined a copy of the PHR for each of the
candidates who were TVA employees. T. 431-37. He also stated
that, although he could not recall having reviewed Frady's PHR,
if he had done so it would have been prior to August 1991. T.
450-53. In view of the link between the "marginal" performance
review, as well as the Arney letter, and Frady's initial Section
210 complaint, it is evident that reliance on such personnel
materials would effectively constitute discrimination against
Frady on the basis of protected activity.
It is also significant that the testimony of two TVA
managers indicated that TVA policy required filling vacancies
from within the ranks of TVA employees, including those in the
ETP, if such employees were qualified. See T. 255-56
(Raines), 431 (Green); see also T. 38-9, 59 (Frady), 309-
10 (Smith). In view of the number of similarly qualified
candidates who were hired from outside TVA for the machinist and
trainee positions -- eleven out of eighteen selectees for the
three positions -- however, it appears that Frady was not given
the benefit of that policy.
TVA's position is not enhanced by the manner in which it
presented evidence in support of its reasons for not selecting
Frady for the machinist and steamfitter trainee positions. Green
repeatedly indicated that he was a "facilitator" and a "neutral
party" in the selection process, insofar as the evaluation of
technical qualifications was concerned, and referred to the
management and union representatives serving on the committees as
crafts experts who were "the selecting officials." T. 373, 394-
95, 401, 403, 410, 440, 449. TVA, however, relied almost
entirely on Green's testimony concerning the relevant
qualifications and "hands on" experience of the selectees, and
although the three other managers who served on the committees
[PAGE 15]
were called by TVA as witnesses, TVA did not seek to substantiate
Green's detailed testimony through extensive questioning of those
witnesses. See T. 530-35 (Poole), 535-56
(Rinehart), 557-61 (Swanson). Indeed, only one of the three was
asked about the selectees' qualifications.[20] See St.
Mary's Honor Center, 113 S.Ct. at 2749, 125 L.Ed. 2d at 418-
19 ("The factfinder's disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a
suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional
discrimination.")
Finally, the evidence in this case indicates that Frady was
the subject of a considerable degree of animus from supervisory
personnel in his chain of command at TVA. Frady's testimony
concerning both his personal knowledge and second-hand
information regarding negative comments made by various
supervisors about Frady's protected activity was corroborated by
the testimony of others, including TVA supervisors. See
T. 201-09, 211-12 (Boykin), 301-05 (Smith), 347-53 (Miller), 355-
56, 520 (Lumpkin).[21] Although Frady surrendered any
claims arising from the Arney letter and the "marginal"
performance review in the June 1991 settlement, CX 1; RX 2, those
supervisory actions provide further evidence of the history of
antagonism by some supervisors against Frady. I conclude
that such animus was transmitted through the supervisory
communication channels already discussed and manifested itself in
discriminatory treatment of Frady in the selection process. I
accordingly conclude that Frady has carried his burden to
demonstrate that he was discriminated against by the selection
committees for the machinist and steamfitter positions at the
Watts Bar and Sequoyah plants on the basis of protected activity.
See Thomas, slip op. at 22-23.
5. Adverse action and discriminatory motive -- position 5
Position number 5 on RX 1 is for the position of instrument
mechanic trainee at the Sequoyah nuclear plant. RX 10A. Frady
applied for that position on July 18, 1991. CX 7; RX 10B. In
addition to the minimum qualifications of the GATB, 18 years of
age, high school diploma or GED certificate, and minimum scores
on the ACT, this position required a "technical Associate of
Science degree from a regionally accredited college or
equivalent." RX 10A. Frady was interviewed for the position by
a labor-management committee. T. 400. Following the hearing,
TVA urged that Frady was not qualified for this position because
he lacked the requisite "basic knowledge of electronics."
Respondent's Post-hearing Brief at 33-35. Although I reject
TVA's argument that Frady failed to meet the minimum
qualifications posted for this position, see RX 10A,[22]
and thus conclude that Frady met the threshold McDonnell
Douglas Corp.[PAGE 16]
requirement to show that his nonselection constituted an adverse
action, I nonetheless conclude, on the following basis, that TVA
has provided legitimate nondiscriminatory reasons for its failure
to select Frady for the instrument mechanic trainee position.
Green testified concerning the qualifications of
the six selectees for the instrument mechanic trainee position
and distinguished between their qualifications and those of Frady
based on 1)a relative lack of knowledge regarding electronics
equipment; 2)the distinction between experience with electrical
equipment and with electronic equipment; and 3)the "hands on"
experience of the selectees relevant to electronics work. T.
395-411.[23] This testimony is convincing.[24] Frady's
testimony, although clearly demonstrating a knowledge of
electrical components, did not demonstrate that the foregoing
reasoning was a pretext for discriminatory non-selection. T. 24,
28-9, 78-81, 152-54. I therefore conclude that Frady has
not demonstrated that his nonselection for the position of
instrument mechanic trainee was motivated by retaliatory intent.
Furthermore, assuming that Frady's history of
protected activity as a nuclear inspector played a role in the
committee's nonselection of Frady, TVA has demonstrated that
Frady would not have been selected for this position in view of
the superior qualifications of the candidates who were selected.
See Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45
(1989); Gibson v. Arizona Public Service Co., Case Nos.
90-ERA-29, 90-ERA-46, 90-ERA-53, Sec. Dec., Sept. 18, 1995;
Rainey, slip op. at 6-7. I thus agree with
the ALJ's ultimate conclusion that Frady did not demonstrate
discriminatory nonselection in regard to position 5.
E. TVA position 4, permanent nuclear inspector
1. Protected activity and knowledge -- position 4
Position number 4 on RX 1 is for a grade level SE-5 nuclear
inspector position at the Sequoyah plant. RX 9A. Lumpkin
testified that he authorized the posting of the vacancy
announcement for the inspector position but decided in August
1991 not to fill that position because of down-sizing concerns.
T. 502-05, 523; see also T. 344-46 (Miller). Lumpkin
acknowledged that, as a senior manager over Frady prior to his
initial RIF in December 1990, he was familiar with Frady's
raising of safety concerns both within TVA and to the NRC, and
also that he was familiar with the June 1991 settlement agreement
with Frady, which he signed. T. 499-500, 518; see CX 2.
Lumpkin therefore had knowledge of Frady's protected
activity at the time that he decided not to fill the nuclear
inspector position.
2. Adverse action -- position 4, nuclear inspector
Frady applied for the nuclear inspector position on July 16,
1991. CX 6; RX 9B. The record reveals that Frady was clearly
qualified for the position, as he had served in that capacity at
[PAGE 17]
both the Sequoyah and Watts Bar nuclear plants, and had performed
at the SE-5 level prior to being terminated from that position in
December 1990. RX 20. I also note that the record
indicates that Frady's performance as a nuclear inspector
was satisfactory; the most recent periodic review of his
performance that is in evidence indicates that "[t]otal service
was better than fully adequate," RX 20, and his immediate
supervisor testified that there had been no problems with the
quality of Frady's work as a nuclear inspector, T. 355-56.[25]
Although, in August 1991, Lumpkin decided not to fill the
nuclear inspector position, the record indicates that at least
two inspectors at the SE-5 grade level were returned to work at
the Sequoyah nuclear plant after the vacancy announcement was
cancelled. Cf. Samodurov, slip op.
at 11 (requiring a complainant to establish that the employer
sought and/or selected similarly qualified candidates following
rejection of the complainant, pursuant to McDonnell Douglas
Corp. criteria). In deposition testimony, TVA 2 at 129-31,
Frady stated that two other nuclear inspectors, who had also
filed complaints against TVA under the ERA, returned to their
positions as nuclear inspectors at the Sequoyah plant pursuant to
the terms of a settlement agreement; this testimony was
corroborated by that of one of those inspectors, Dewey Ray Smith,
T. 298-303, as well as the testimony of James Boykin, a TVA
examiner in the electrical field at TVA's Sequoyah Training
Center, T. 234. See Smith and Smith v.
Tennessee Valley Authority, Case Nos. 92-ERA-23, 92-ERA-24,
Sec. Ord. [Approving Settlement], Aug. 31, 1992.[26] I
therefore conclude that TVA, in effect, filled the announced
nuclear inspector vacancy with similarly qualified candidates and
that Frady has thus established that the failure to select him
for the position of nuclear inspector at the Sequoyah plant
constitutes an adverse action. See Samodurov, slip
op. at 11, citing McDonnell Douglas Corp., 411 U.S. at
802.[27]
3. Temporal proximity and
inference of retaliatory motive -- position 4, nuclear
inspector
As discussed supra, temporal proximity between
protected activities and the adverse action may be sufficient to
support an inference of retaliatory motive. Couty, 886
F.2d at 148; Rainey, slip op. at 5-6;
McCuistion, slip op. at 8. In the instant case, Lumpkin
testified that he decided not to fill the nuclear inspector
position in August 1991. T. 523. That timeframe was within a
few months of the execution of the June 1991 settlement between
Frady and TVA. Furthermore, Lumpkin testified that
although he was unsure whether he had been told at that time that
Frady had applied for the job,[28] T. 509-10, he was "reasonably
certain if [Frady] wanted the inspector job at
[PAGE 18]
Sequoyah, he would have applied." T. 523. I therefore conclude
that Lumpkin strongly suspected, if he did not have certain
knowledge, that Frady had applied for the position; thus any
uncertainty in the record concerning such knowledge does not
preclude a finding of retaliatory motive in regard to Lumpkin's
decision not to fill the inspector vacancy.[29] See
Pillow, slip op. at 12, citingWilliams, slip
op. at 6. I conclude that Frady has thus established an
inference of retaliatory motive based on temporal proximity.
4. Discriminatory motive -- position 4, nuclear inspector
TVA asserted that Lumpkin's decision not to fill the inspector
vacancy was based on his concerns about downsizing under the T.D.
Martin staffing study[30] and was not motivated by
discriminatory intent. Respondent's Post-hearing Brief at 10-11;
see RX 9B; T. 501-09. The ALJ
accepted this contention. R. D. and O. at 4, 8. A review of the
record, however, indicates that much of Frady's testimony
concerning antagonistic exchanges with Lumpkin, T. 179-91, is
corroborated by statements made by Lumpkin at hearing, see
T. 520-29.[31] On the basis of the degree of animus
exhibited toward Frady, I disagree with the ALJ and conclude that
the decision not to fill the nuclear inspector vacancy was based,
at least in part, on discriminatory intent. See
Harrison, slip op. at 8. When the evidence
establishes that discriminatory intent played a role in an
adverse action, the employer may avoid liability only by
demonstrating that the action would have been taken on the basis
of a legitimate motive alone. Yellow Freight System, Inc.,
27 F.3d at 1137, 1140 (holding that St. Mary's Honor
Center did not disturb mixed motive doctrine);
Mackowiak, 735 F.2d at 1163-64, citing Mt. Healthy City
School District v. Doyle, 429 U.S. 274 (1977)[further
citations omitted]. Under the dual motive analysis, the employer
"bears the risk that 'the influence of legal and illegal motives
cannot be separated
. . . .'" Mackowiak, 735 F.2d at 1164, quoting NLRB v.
Transportation Management Corp., 462 U.S. 393, 403 (1983);
see Harrison, slip op. at 9-10; Pillow, slip
op. at 14-15.
The evidence relevant to the issue of whether Lumpkin would
have declined to fill the inspector position on the basis of the
pressure to downsize alone does not provide adequate
substantiation for Lumpkin's testimony. The record contains a
copy of a draft of the T.D. Martin staffing study and a cover
memorandum written by Lumpkin to higher TVA management providing
his input regarding the study's recommendations for downsizing.
RX 9B. The memorandum, dated August 19, 1991, indicates that,
although the staffing study recommended the addition of a quality
inspector position on Lumpkin's staffing plan, Lumpkin had
decided that he would not avail himself of this opportunity to
enlarge his staff of quality inspectors and, also, that he would
[PAGE 19]
not fill the pre-existing vacant inspector position that he had
advertised.[32] Id. Contrary to the ALJ's finding, R.
D. and O. at 4, the downsizing study did not mandate that
the quality inspector position not be filled. The conclusion
that Lumpkin was not motivated by the recommendations of the
staffing study is further supported by the following.
Lumpkin pointed out at hearing that the August 1991
memorandum also indicated his decision not to fill a quality
auditor vacancy, and he urged that this was because he felt that
he could use these vacancies as opportunities for downsizing
through attrition. T. 507. He did not, however, note that his
staff at that time included 4 more Quality Auditors than
recommended by the staffing study, which contrasts significantly
with the fact that the staff had 2 fewer Quality Control
inspectors than recommended by the study. See RX 9B.
Also, Lumpkin testified that, in August 1991, he had "about 59 or
60" employees in his unit,[33] and that, under the staffing
study, his staff should be reduced to 54 in approximately four to
five years. T. 505. Contrary to his testimony, his August 19,
1991 memorandum indicates that he then had 57 employees. RX 9B.
Furthermore, I note that the sequence of events
immediately prior to the decision not to fill the position is
suspicious. See Mackowiak, 735 F.2d at 1162;
Harrison, slip op. at 9. Smith testified that the vacancy
announcement for the Sequoyah nuclear inspector position was not
posted at the Eastgate ETP office location in Chattanooga, where
he and Frady were assigned, and that only by virtue of his
interception of a misdirected telephone call from a TVA lead
inspector did Smith discover that a vacancy announcement for an
inspector position at Sequoyah had been issued. T. 306-07.[34]
Frady and Smith both testified that Frady hand delivered their
applications, along with those of other inspectors in the ETP, to
the designated personnel officer. T. 42, 46-7 (Frady), 307-08
(Smith); see nn.28-9, supra. Frady testified that,
within a few days after he submitted those applications, he was
notified of the management decision not to fill the position. T.
46, 175-77.
On the foregoing basis, I conclude that Lumpkin made his
decision not to fill the advertised nuclear inspector vacancy
because he knew or strongly suspected that Frady had applied for
the position. Although Lumpkin may have been debating the issue
of whether to fill the position prior to that time, he resolved
his doubts against filling the position based on his intention
not to provide that employment opportunity to Frady. See
Harrison, slip op. at 9-10. I therefore reject the ALJ's
finding to the contrary and conclude that Frady has demonstrated
that he was discriminated against in the closing of the vacancy
for the SE-5 nuclear inspector position.
[PAGE 20]
F. Position 9, temporary nuclear inspector
Position number 9 on RX 1 is for temporary nuclear
inspectors to assist at the Sequoyah nuclear plant during an
outage that occurred in September, October and November 1991. T.
225 (Boykin); see RX 19A. This position was not a job
vacancy in the ordinary sense. The record indicates that, at the
time of the plant outage,[35] several TVA employees whose
positions as quality inspectors had been eliminated were
participating in the ETP and were thus available to assist in
filling the need for extra inspectors during the outage. T. 220-
25 (Boykin). As those employees were already collecting regular
paychecks under the ETP, their participation as inspectors during
the outage would not result in any additional income, unless they
were given the opportunity to work overtime. T. 223-24 (Boykin),
316 (Smith). The temporary inspectors would, however, have the
opportunity to make contacts that could be useful to them in
seeking employment opportunities in the future. T. 223-24.
In regard to this position, Frady alleged that he was not
timely advised by management of the opportunity to work during
the outage or of how to apply. T. 39-41; see T. 116-18;
R. D. and O. at 4-5, 8. Frady also questioned why his name was
not included in a list of qualified ETP employees that was
circulated to ETP offices. T. 39-41, 119-21; see RX 19A.
The testimony of TVA supervisors Miller and Boykin indicates
that there was considerable confusion regarding how best to
solicit the participation of ETP employees as temporary
inspectors during the outage. T. 222-27, 230-36 (Boykin), 342-
47, 358-60 (Miller). TVA management recognized that it would be
a cost-savings approach to enlist the aid of additional
inspectors during the outage from the ranks of qualified
employees in the ETP, but it became apparent that the ETP status
of the inspectors and the temporary nature of the positions would
complicate this approach. See id. Boykin testified that
he initially attempted to personally contact ETP personnel about
working in the outage but, upon recognizing that he could not
personally contact all ETP offices and in the interest of
alerting all interested employees, he contacted Charlotte Hale, a
staffer in the TVA Employment Services Office, for assistance.
T. 225-27. Hale testified that she generated a list of qualified
ETP employees by using "quality" in a word search of TVA's
computerized personnel files; by using "quality" rather than
"nuclear" she failed to include the names of Frady and other
nuclear inspectors. T. 285-87, 289-92; see R. D. and O.
at 4. The list generated by Hale was then forwarded to ETP
locations for posting along with the announcement of these
temporary positions. T. 283-84. Frady stated that he did not
see the announcement until after the closing date, at which time
he,
[PAGE 21]
along with other interested inspectors at the ETP, telephoned
Miller to ask how to apply and were told that Miller would ensure
that they were called to participate. T. 40-41.
Without resolving the preliminary issues under the
McDonnell Douglas Corp. framework, see Samodurov,
slip op. at 11, I conclude that Frady has not carried his
ultimate burden of demonstrating that he was excluded from
participation under this temporary position based on intentional
discrimination. See Yellow Freight System, Inc., 27 F.3d
at 1139-40. Initially I note that the failure to include
Frady, and other nuclear inspectors, on the list appended to the
vacancy announcement was adequately explained by Hale's testimony
to be the result of inadvertence, or, at worst, inefficiency.
See id. Furthermore, I consider
the testimony of Boykin and Miller to be exceptionally forthright
and devoid of any indication of animus towards Frady. The
testimony of Boykin and Miller indicates considerable confusion
as to the procedures to be followed in accepting applications for
these temporary positions, i.e., whether they would go
through the usual route of being submitted to Boykin first, who
would then forward them to Miller for approval, or whether they
could go directly to Miller. T. 229-31 (Boykin), 342-43
(Miller). In an attempt to maintain some order in this process,
it was agreed that Boykin would accept the applications and then
seek approval of the candidates from Miller. T. 231 (Boykin),
342-43 (Miller). When considered together, the testimony of
Frady, Boykin and Miller indicates miscommunication resulting
from this confusion. When contacted by telephone by Frady and
his fellow inspectors at ETP regarding participation in the
outage, Miller indicated his agreement to their participation.
See T. 342-43. This statement was apparently understood
by Frady to indicate that it was unnecessary to apply
through Boykin, although that was not the case. T. 230-31
(Boykin). Based on this misunderstanding, Frady failed to file
an application with Boykin. T. 116-18. I therefore conclude
that the evidence does not establish that discriminatory intent
played any role in Frady not receiving adequate notice and
instruction concerning application for this position. I
accordingly agree with the ultimate conclusion of the ALJ that
the complaint in regard to position 9 should be dismissed. R. D.
and O. at 8.
G. Position 10, Stone & Webster civil inspector
Position number 10 on RX 1 is that of civil inspector with
Stone & Webster (SWEC), a contractor that provided quality
inspectors at the Watts Bar nuclear plant, with candidates for
such positions being subject to approval by TVA management. T.
472-73 (Barcum); R. D. and O. at 5. Frady alleges that TVA
blacklisted him on the basis of his history of protected activity
[PAGE 22]
and thus interfered with his securing a position with SWEC.
Specifically, Frady testified that Ed Barcum, a personal
acquaintance who worked with SWEC, solicited Frady's resume
following his receipt of the RIF notice in November 1991. T. 47-
51. Frady also testified that, after he had sent the resume to
Barcum and received no further word regarding a position with
SWEC, he contacted Barcum, who explained that he had been
directed not to broach the subject of hiring Frady as an
inspector again, at the risk of imperiling his own position with
SWEC. T. 51-2. Frady further testified that Barcum told him
that a TVA supervisor with whom Frady had worked previously had
destroyed the copy of Frady's resume that he had sent to Barcum.
T. 51-2; see 52-5, 195-96.
In his hearing testimony, Barcum denied Frady's version of
events, stating that, although he had asked Frady to send him a
resume for consideration, Frady had not done so. T. 473-77.
Barcum also denied that he had told Frady that a TVA manager,
Duane Ezell, had destroyed Frady's resume and indicated a hostile
attitude towards Frady. T. 477-78. James E. Mann, also of SWEC,
testified that he, as Barcum's supervisor, was responsible for
acting as liaison to Ezell at TVA and he, rather than Barcum,
would have been responsible for referring Frady's resume to
Ezell, had Frady submitted one to Barcum. T. 487-91.
In order for Frady for prevail on his blacklisting
claim in this case in which it is alleged that TVA, rather than
SWEC, has discriminated against him, Frady must establish that
TVA intentionally interfered with an employment opportunity
available to Frady through SWEC. See Bartlik v. Tennessee
Valley Authority, Case No. 88-ERA-15, Sec. Ord., July 16,
1993, slip op. at 4-5; Doyle v. Bartlett Nuclear Services,
Case No. 89-ERA-18, Sec. Dec., May 22, 1990. Without ruling on
the preliminary issues under the McDonnell Douglas
Corp. framework, I conclude that Frady has failed to
establish that TVA intentionally interfered with an employment
opportunity available through SWEC. See Yellow Freight
System, Inc., 27 F.3d at 1139-40.
Frady's testimony, and that of his former co-worker Smith,
established that Ezell had knowledge of Frady's protected
activity and had indicated animus towards Frady as a
"whistleblower",[36] T. 576-77 (Frady), 301-02 (Smith). Both
Barcum and Mann denied, however, that Ezell had discussed Frady
with them, T. 478, 488-89, and, on cross-examination
Complainant's counsel failed to elicit testimony that would
support an inference of such communication. See generally
Mackowiak, 735 F.2d at 1162.Without evidence
that Ezell, or another TVA employee, had intentionally interfered
with any employment opportunity that Frady may have had available
to him with SWEC,[37] Frady cannot establish retaliatory action
under the ERA against
[PAGE 23]
TVA. See Bartlik, slip op. at 4-5. I therefore
agree with the ultimate conclusion of the ALJ that the complaint
against TVA concerning the SWEC inspector position should be
dismissed.
CONCLUSION
I find that Complainant was discriminated against in
violation of Section 210 of the ERA by Respondent when he was not
selected for hire for the machinist and steamfitter trainee
positions at the Watts Bar and Sequoyah nuclear plants and for
the position of SE-5 nuclear inspector at the Sequoyah plant.
Accordingly, Respondent is ORDERED to offer Complainant the
machinist trainee, or comparable, position; the steamfitter
trainee, or comparable, position; and the SE-5 nuclear inspector,
or comparable, position; to pay all appropriate back pay and
other appropriate compensation allowed under the ERA; and to pay
Complainant's costs and expenses in bringing these complaints,
including a reasonable attorney's fee. This case is hereby
REMANDED to the ALJ for such further proceedings as may be
necessary to establish Complainant's complete remedy, consistent
with this decision; the calculation of back pay should be based
on the difference between Complainant's earnings and the amount
that Complainant would have earned during the period from the
earliest applicable starting date of the pertinent position
supra until the actual appointment date of Complainant to
such position, or Complainant's refusal of such offer.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Section 2902(b) of the Comprehensive National Energy Policy
Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, amended the ERA
for claims filed on or after its date of enactment, October 24,
1992. As a result of these Amendments, Section 210 of the Act
has been redesignated as Section 211. These Amendments do not
apply to this case, in which the complaints were filed in August
and September of 1991 and January of 1992; the pre-Amendments
statutory references have therefore been used.
[2] For purposes of referencing the fourteen jobs addressed in
the instant complaints, I will follow the ALJ's approach and use
the numbers assigned to each position on RX 1. See R. D.
and O. at 2.
[3] I note, however, that to the extent that TVA's argument in
support of entry of summary judgment is premised on a requirement
for direct evidence of discriminatory motive, it lacks merit.
SeeHuguley v. General Motors Corp., 52 F.3d 1364,
1371 (6th Cir. 1995), and cases cited therein (discussing
importance of framework provided by McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), to complainants who must
frequently rely on circumstantial evidence to support allegation
of employment discrimination); Ellis Fischel State Cancer
Hosp. v. Marshall, 629 F.2d 563, 566-67 (8th Cir.
1980)(rejecting employer's argument regarding lack of testimony
concerning "personal and direct knowledge of retaliatory
motivation" in ERA case); see also United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 716
(1983)(noting that, in employment discrimination cases, there
will rarely be "eyewitness" testimony concerning
employer's mental processes); Benson v. Northwest
Airlines, Inc., 1995 U.S. App. Lexis 22008 (8th Cir. Aug. 15,
1995), at 3, quoting Crawford v.Runyon, 37
F.3d 1338, 1341 (8th Cir. 1994) (discussing "rare
instances" in employment discrimination cases in which there is
no dispute of fact and evidence will support only one
conclusion). Furthermore, TVA's apparent refusal to cooperate
with Frady's informal attempts at discovery, see T. 85-6,
136-38, 155-56, 167-69; see also T. 64, 95, 134, 166,
raises the issue of the propriety of entry of summary judgment in
favor of TVA on procedural grounds, see Gillilan, slip op.
at 11, citing Celotex Corp. v. Catrett, 477 U.S.
317, 326 (1986); 29 C.F.R. § 18.40(d)("The administrative
law judge may deny the [summary judgment] motion whenever the
moving party denies access to information by means of discovery
to a party opposing the motion"). It is unclear why the
complainant did not engage in formal discovery, as provided for
at 29 C.F.R. §§ 18.13 et seq., see also
29 C.F.R. § 24.5(e)(1)("Evidence. Formal rules of
evidence shall not apply, but rules or principles designed to
assure production of the most probative evidence available shall
be applied.")
[4] The ERA requires that settlement of a complaint be approved
by the Secretary.42 U.S.C. § 5851(b)(2)(A);
Macktal v. Secy. of Labor, 923 F.2d 1150, 1153-54 (5th
Cir. 1991); Thompson v. United States Dept. of Labor, 885
F.2d 551, 556 (9th Cir. 1989); Fuchko and Yunker v. Georgia
Power Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec. Ord., Mar. 23,
1989, slip op. at 1-2. I note that the settlement agreement,
Complainant's Exhibit (CX) 1; RX 2, entered into by Frady and TVA
in June 1991 had not reached the hearing level and was thus not
reviewed to determine whether it was "fair, adequate and
reasonable," Fuchko, slip op. at 2; see also Hoffman v.
Fuel Economy Contracting, Case No. 87-ERA-33, Sec. Ord., Aug.
4, 1989. No party in this case has raised an issue
regarding the validity of the June 1991 settlement. Cf.
Wampler v. Pullman-Higgins Co., Case No. 84-ERA-13, Sec.
Ord., Jan. 23, 1992; Ord. Denying Recon., June 13, 1994 (in which
the complainant sought review by the Secretary of a settlement
agreement entered into by the parties several years before that
had not previously been before the Secretary).
[5] TVA argued at hearing, "What's the point of a settlement if
he can dredge up the events that were settled --." T. 350-51.
See generally Armijo v. Wackenhut Services,
Inc., Case No. 94-ERA-07, Sec. Ord., Aug. 22, 1994 citing
Johnson v. Transco Products, Inc., Case No. 85-ERA-7, Sec.
Ord., Aug. 8, 1985 (holding that settlement agreement provision
may be read only as limiting the complainant's right to
sue in the future on claims or causes of action arising out
of the facts or any set of facts occurring before the date of the
agreement).
[6] The ALJ entertained constant objections from the two counsel
representing TVA at hearing. As indicated supra, many of
these were unmeritorious. In this circumstantial evidence case,
first establishing animus among supervisors with whom Frady had
previously worked directly was crucial to presenting proof of
animus among TVA officials who were responsible for the
selections for the positions at issue herein. The ALJ should,
therefore, not have entertained TVA's repeated objections to
testimony regarding witnesses' observations of demonstrations of
animus toward Frady on the basis that a proper foundation had not
been laid. See, e.g., T. 301. Similarly, the ALJ
should not have entertained TVA's repeated relevancy objections
to testimony that Frady's counsel was eliciting in order to lay a
foundation for further testimony regarding supervisory animus.
See, e.g., T. 203-04, 206.
It is also noted that TVA counsel, on more than one occasion
during the hearing, interrupted the testimony of witnesses while
those witnesses were being examined by Complainant's counsel to
interject their own "testimony." See, e.g., T. 311, 353-
54; see generally 29 C.F.R. § 18.36 (Standards of
conduct), §18.37 (Hearing room conduct).
[7] TVA's focus at hearing on Frady's lack of "any specific
knowledge" that any of the selecting officials would have
intended to discriminate against him was misplaced in this case
in which Complainant is relying on circumstantial, rather than
direct, evidence of discriminatory intent, see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); discussion, infra and at n.3.
[8] I note that the substance of Frady's testimony indicates
complete candor, both at hearing and at deposition. Although his
testimony evinces some tendency toward hyperbole, cf. T.
28 ("I turned in a concern [at the Watts Bar plant] only after
they threatened to kill me.") with RX 25 (report of Watts
Bar Human Resources office investigation of Watts Bar
altercation in which an irate electrical engineer addressed Frady
in an abusive manner and asked him to "step outside"), the
essential facts presented in his testimony are, with few
exceptions, corroborated by documentary evidence or the testimony
of other witnesses. I note that it is significant that much of
this corroboration is provided by witnesses whose testimony was
not self-serving.See Universal Camera Corp., 340
U.S. at 496. I also note that Mike Miller, Frady's TVA
supervisor for four to five years, testified that he had known
Frady to be a truthful individual. T. 354.
[9] This program was implemented in 1991 to aid displaced TVA
workers to transition to other jobs. T. 244-45 (Raines).
[10] Frady's uncontradicted testimony indicates that, on more
than one occasion, he questioned general practices related to
safety, rather than isolated incidents of noncompliance with
safety standards in the nuclear plants. T. 25-30. Frady also
testified that, as a result of such noncompliance, the Watts Bar
plant experienced a work stoppage and was the subject of
newspaper coverage regarding safety problems there. T. 30-31.
According to both Frady's testimony and documentation introduced
at hearing, another incident of protected activity involved
Frady's raising a concern regarding an apparent threat made to
Frady by an electrical engineer at the Watts Bar nuclear plant in
the course of Frady's performance of his duties as a quality
control inspector. T. 28; CX 16, RX 25; see T. 562-73.
[11] The third manager, Jeffrey H. Swanson, Mechanical
Maintenance Manager at the Watts Bar plant, testified that he had
no knowledge of Frady prior to his interview; he also testified
that he had worked for TVA "slightly more than two years" at the
time of the hearing, which would mean that he had been with TVA
only about one year at the time the interviews for these
positions were held, and would not have worked at the Watts Bar
plant when Frady had. T. 557. Poole and Rinehart testified that
they had worked for several years at the Sequoyah plant. T. 531,
536.
[12] The committee responsible for the steamfitter selections was
comprised of M. Raymond Rinehart, Mechanical Maint. Manager at
the Sequoyah plant, T. 536, Harlan Sutherland, representing the
steamfitters' union, T. 387, and Green. See RX 7C. The
committee responsible for the machinist selections was comprised
of Rinehart, Green and Edward Pierce, representing the
machinists' union, T. 387. See RX 7C.
[13] It is clear, however, that some of the selectees did
have more relevant "hands on" experience than Frady. See,
e.g., T. 418 (Green testimony regarding selectee who had
several years as a "subjourneyman" machinist).
[14] Green noted as significant the fact that a candidate for the
instrument mechanic position, see discussion infra,
was personally familiar with the equipment at the Sequoyah plant,
although Green did not attest to that candidate having any
pertinent "hands on" experience. T. 405.
[15] Frady's resume indicates the following experience or
education relevant to "manual dexterity" and "mechanical
ability": an Associate of Applied Science Degree in Architecture,
completion of an additional college course on mechanical
engineering, and completion of a computerized drafting course.
RX 20. In addition, Frady's testimony indicated that he had
worked at TVA in the field of Chemical Metallurgy, and that, as a
TVA inspector, he had been certified to engage in various types
of non-destructive testing to detect flaws in metal components.
T. 23-4, 99.
[16] Frady has not challenged the decision not to interview him
for the steamfitter trainee position at the Watts Bar plant. I
also note that the record indicates no basis for a conclusion
that the decision not to interview Frady for that position at the
Watts Bar plant was motivated by retaliatory animus.
[17] The vacancy announcements for the machinist and steamfitter
positions at the Watts Bar and Sequoyah plant stated that the
closing dates were January 14, 1992 and December 28, 1991,
respectively. RX 11A, 7A. Green testified, however, that the
selections were made months before those dates. T. 432-37.
[18] Green testified that all the instrument mechanic selectees
demonstrated their understanding of a PNP transistor. T. 402-04.
In regard to one candidate's correct answer to the interview
question about the PNP transistor, Green stated "And I have no
knowledge that she was primed or anything." T. 406. Apparently
attempting to minimize the damaging effect of this statement on
the credibility of the selection process, Green added "There
would have been no reason for that. These [answers] were
[expected to be] just kind of off the top of your head." T. 406.
Green's statement that there would be no reason for a candidate
to be "primed" before the interview is wholly inconsistent with
his statements that all the selectees answered this question
correctly and that an understanding of the PNP transistor was
deemed by the instrument mechanic selection committee to be
necessary to the requisite basic understanding of electronics.
See T. 402-03. Although these comments concern the
selection of the instrument mechanic trainees only, they reflect
on the integrity of the committee selection process as it
pertains to Frady's nonselection.
[19] Alex Lee Sewell, TVA Records Officer, testified that it was
typical for a change in the PHR to be delayed six or more weeks.
T. 268-69. TVA provided no explanation for its failure to
expedite that process in these circumstances. See generally
Orr v. Brown & Root, Inc., Case No. 85-ERA-6, Sec. Dec., Oct.
2, 1985 (addressing complainant's breach of settlement
complaint).
[20] Rinehart, who had not been present at Frady's interviews but
who had discussed the candidates' qualifications with
representatives who substituted for him at the interviews,
recalled very little about the candidates' qualifications, beyond
the general issue of their having more "hands on" experience than
Frady. Cf. T. 375-81, 385-95, 410-25, 438-40 (Green
regarding pertinent "hands on" experience) with T. 541-47,
550-52, 554-55 (Rinehart on same subject).
[21] Testimony indicated that derogatory comments about Frady had
been made by various supervisory personnel, including a
supervisor who told one of Frady's fellow inspectors that he and
Frady went "overboard" in the performance of their duties. T.
301-05.
[22] Green testified regarding the committee selection process
for the instrument mechanic trainee position, and he did not
indicate that Frady had not met the minimum qualifications for
the position. T. 395-411. Rather, Green's testimony about the
committee selection process indicated that only those applicants
who possessed the minimum qualifications were interviewed. T.
375. Furthermore, the record indicates that, at the time that he
applied for this position, Frady held an Associate Degree of
Applied Science in Architecture, which included a general
electrical course, T. 78, and had specialized in inspections of
electrical connections and wiring for the past several years as
an inspector. CX 8; T. 24, 28-9, 78-81; see T. 107-15. I
therefore conclude that Frady demonstrated to the selection
committee the necessary minimum qualifications for this position,
as indicated on the vacancy announcement for the position, RX10A,
including the equivalent of a technical Associate of Science
degree. I also note that Green referred at hearing to the
requirement for an Associate Degree in electrical or electronics
technology, T. 400, but that requirement was not stated on the
vacancy announcement, RX 10A.
[23] The committee responsible for the instrument mechanic
selections was comprised of Green, Roger Poole, Instrument
Maintenance Group Manager, T. 530, and Thomas O'Neal,
representative for the electricians' union, T. 398-99. See
RX 10C.
[24] Poole testified that, although he had been an electrician
before beginning his career at TVA, he nonetheless completed a
three and one-half year TVA training program in electronics to
prepare him to work there as an instrument mechanic. T. 531. I
note that this testimony provides support for Green's reasoning
concerning the distinction between knowledge of electrical
equipment and of electronic equipment.
[25] The two most recent performance reviews in the record
indicate that Frady was "conscientious", "dependable", had an
"excellent attitude" toward his job, "coordinates well with his
peers, supervisors and other plant employees", used "good
judgment" and was "very professional" in the performance of his
assigned duties. RX 20 at 3-6. Miller testified that Arney,
Frady's supervisor while Frady was on special assignment to the
Watts Bar plant, told Miller to rate Frady's performance as
"marginal." T. 351.
[26] These two inspectors were returned to work at the
Sequoyah plant pursuant to an agreement between the parties dated
June 24, 1992. Smith and Smith, slip op. at 1. The fact
that these inspector positions were not filled in the usual
course of business, in June 1992, does not undermine the
conclusion that the pressures of downsizing, as discussed
infra, were not determinative of Lumpkin's decision not to
fill the inspector position in August 1991. The record also
indicates that Frady had been promoted to the SE-5 nuclear
inspector level at the same time as Messrs. Smith and Smith.RX 12A at 6, 7.
[27]
TVA urges that cases arising under the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. (1988 ed. and
Supp. V), require the application of a higher standard to an
employee who is challenging a termination that occurs in the
course of a RIF. Respondent's Post-hearing Brief at 23-4. This
argument is without merit. TVA cites decisions of the United
States Court of Appeals for the Sixth Circuit stating the
criteria, first enunciated in LaGrant v. Gulf & Western
Mfg. Co., 748 F.2d 1087 (6th Cir. 1984), for establishing a
prima facie case of discriminatory discharge in an ADEA
RIF situation. Contrary to TVA's contention, the
LaGrant progeny discuss not only the indefensibility of
concluding that every member of the class protected by the ADEA
has been discriminatorily discharged when terminated during a RIF
but also the need to adapt the McDonnell Douglas Corp.
criteria to permit complainants to establish a prima facie
case of discriminatory discharge in situations in which a
complainant's position was not filled following his/her
termination.See, e.g., Barnes v. Gencorp Inc.,
896 F.2d 1457, 1465-66 (6th Cir. 1990). The Sixth Circuit
court has thus indicated that the McDonnellDouglas
Corp. criteria, as applicable to a discharge under the ADEA,
is not to be mechanically applied and that an ad hoc
analysis is required in each case to determine whether a
complainant has met his/her preliminary burden of raising an
inference of discriminatory discharge based on age. This burden
is analogous to that required of a complainant under the ERA, in
which evidence, either circumstantial or direct, is required to
establish an inference of discriminatory action, see, e.g.,
Couty v. Dole, 886 F.2d at 148. It is also
noteworthy that Frady is not challenging TVA's termination of him
but is challenging TVA's failure to select him for any of the
various positions for which he was qualified and for which he
applied prior to the effective date of his RIF termination.
Finally, TVA's reliance on the LaGrant progeny arising
under the ADEA, including the unpublished decision in Smith v.
Tennessee Valley Authority, 924 F.2d 1059 (6th Cir.
1991)(table), is particularly ill founded in this case containing
evidence of retaliatory animus because, as observed
by the Supreme Court, "age discrimination rarely was based on the
sort of animus motivating some other forms of discrimi-
nation. . . .", EEOC v. Wyoming, 460 U.S. 226, 231 (1983).
TVA also incorrectly argues that Frady must show that he was
treated differently from similarly situated employees.
Respondent's Post-hearing Brief at 27-31. As stated by the
United States Court of Appeals for the Sixth Circuit in DeFord
v. Secy. of Labor, 700 F.2d 281, 286 (6th Cir. 1983), such a
requirement "would take no account of the possibility that more
than one person might be exposed to the same type of
discrimination." In the instant case, it is noted that
another nuclear inspector, who was participating in the ETP with
Frady, was also not rejected for the position of Instrument
Mechanic trainee at the Sequoyah plant. See RX 10C.
[28] The package of applications for the inspector position had
not been forwarded to Lumpkin's office from the office of Alvin
Black, a personnel officer, at the time the decision not to fill
the vacancy was made. T. 346, 357 (Miller).
[29] Between the time that Frady filed his application and he
received notice that the position would not be filled, he
telephoned Miller and advised him that he had applied. T. 175-77
(Frady), 335-38 (Miller). Although I credit Miller's testimony
that he did not advise Lumpkin that Frady had applied for the
inspector position, T. 337, I also note that the applications had
been delivered to Alvin Black, a TVA personnel officer who is a
collateral manager in the TVA organization, see RX 9B,
Lumpkin memorandum at 3.
[30] Lumpkin testified that the T.D. Martin company conducted a
staffing study of TVA in 1991 and that the company's
recommendations were provided to higher level managers, including
Lumpkin, for response. T. 503-09.
[31] For example, Lumpkin did not deny having had a discussion
with Frady, just weeks before the hearing, at a TVA car auction.
T. 524-25. Frady testified that Lumpkin had told a companion at
the auction, in Frady's presence, that Frady was one of "the few
inspectors that we TVA managers could not intimidate." T. 180.
Lumpkin testified that he did not remember having made that
statement but that he would agree that he did not "think anybody
intimidates Frady." T. 524. Frady also testified that, on that
occasion, Lumpkin remarked that derogatory comments had been
written about Frady by supervisors Arney, Crowe and Martin. T.
180. Lumpkin did not expressly deny having made such statements
to Frady; he instead responded on cross-examination that he and
Frady, on that occasion, "may have had some general discussion on
our history together." T. 525.
Frady also testified that, when he received his first RIF notice
in November 1990, it was delivered to him personally by Lumpkin
who stated, with Arney present, "I'm sorry, you're going to lose
your house, your car and your land." T. 181-82; see T.
188-91. Frady's testimony indicated that this exchange played a
role in the Section 210 complaint that was resolved by settlement
in June 1991. T. 181-82. Lumpkin denied that he made any
vindictive statements to Frady. T. 511-12. Lumpkin testified
that Frady's responding to the November 1990 RIF notice with
statements concerning the employment options available to him
"frustrated" Lumpkin. T. 523, 525. Lumpkin testified that Frady
had been "vociferous", albeit "in a professional way", in stating
his objections, which Lumpkin noted were shared by other
inspectors, to a change in the TVA inspection policy to permit
fewer inspections of any particular component in the plants if
certain criteria were met. T. 520-21, 527-29.
[32] The T.D. Martin staffing study proposed that Lumpkin's unit
have 23 quality auditors and 22 quality inspectors, effective
October 1991. RX 9B. Lumpkin's memorandum stated that he would
maintain the number of auditors and inspectors that were on his
staff in August 1991, which was 27 quality auditors and 20
quality inspectors. Id.
[33] Lumpkin is included in this figure as the unit manager.
See RX 9B.
[34] Smith testified that he discovered that the vacancy
announcement had been issued for a SE-5 Nuclear Inspector at the
Sequoyah plant when Ted Willoughby, a Level 3 Lead Inspector with
TVA, telephoned the Eastgate ETP office in Chattanooga when he
was actually trying to reach an inspector in the RIF program at
the Riverside ETP office in Chattanooga. T. 306-07, 310-11.
[35] James Boykin, of TVA's Inspection Services Organization,
described an outage as "when they bring the plant down for
refueling and . . . they try to take care of lots of maintenance
activities." T. 221-22.
[36] On cross-examination, Miller acknowledged that, although he
could not recall specifics, he "probably" had heard Ezell make
derogatory comments about whistleblowers. T. 347. Ezell's
testimony was evasive and contradictory and his attempts to
refute the testimony of Frady and Smith were not persuasive. T.
456-58, 467-71.
[37] Although Frady testified that he had mailed a resume, which
was specifically drafted to focus on his experience with
inspections in the civil area, T. 107-08, he failed to submit a
copy of such resume as evidence in this case. See
id. In view of the disposition of this complaint, I
need not reach the issue of Frady's qualifications for a civil
inspector position with SWEC. See T. 107-15; R. D. and O.
at 9.
